Before sitting down to work with an estate planning attorney, you have an important choice to make: to make your trust easy to change or not. This is the primary distinction between a revocable and an irrevocable trust. Although the term trust accurately describes both of these, they accomplish different purposes based on the fact that you can update one but not the other.
There are many good reasons that you might want a trust to be able to update while you are still alive. Many expectations and assumptions that might have influenced the original terms of the trust, for example, can change as your children get older. But a settlor might not be comfortable with the idea of a trust becoming easily modified by beneficiaries after they have passed away. There are plenty of financial and tax reasons why the power to change your trusts may last several generations is advantageous. However, state trust laws have always allowed a beneficiary process for petitioning the court with jurisdiction to approve a modification if and when necessary.
Lately there has been a trend towards giving greater control to the trust beneficiaries and avoiding the use of state courts. Many creators of trusts today view this relationship as a financial strategy to reduce taxes and to provide for family governance. This approach values discretion and family control more so than fiduciary expertise. If you want the flexibility and control, think carefully about how to create a trust that would work for you and your loved ones. Sit down with a New Hampshire estate planning lawyer to learn more about when you should create a trust and what to consider as you draft one.
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